Leon Roy v. Minister of National Revenue, [1983] CTC 2644, 83 DTC 576

D E Taylor [ORALLY]:—This is an appeal from Leon Roy with regard to his 1976, 1977, 1978 and 1979 tax returns. The matter at issue is a simple and direct one: whether or not during the years in question the appellant was a resident of Canada for purposes of income tax.

I would make reference to a citation by counsel for the respondent to be found in Percy Walker Thomson v MNR, [1946] CTC 51; 2 DTC 812 at 63 and 815 respectively. I repeat it with emphasis:

.. .1 think, that in common parlance “residing” is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case, it is satisfied by certain elements, in another by others, some common, some new.

I think that is completely in accord with the general references made by counsel for the appellant that matters of this nature are to be reviewed on the facts as they appear and as they are presented at the hearing. I emphasize “as they are presented at the hearing”, which is for the benefit and use of the members of the Board.

Without in any way trying to short-circuit the testimony and evidence provided by the appellant and the summary of it, I would suggest that the case for the appellant comes down to roughly the following points:

(1) In Ireland, he rented a house;

(2) he had a lady friend;

(3) he had a bank account;

(4) he purchased some furniture;

(5) he purchased a car;

(6) he worked there during several years;

(7) he made a few visits back to Canada for specific reasons; and

(8) his stated intention to remain there.

I would simply suggest that thousands, perhaps tens of thousands of Canadians, could put forward the same or somewhat similar valid points on various issues.

As opposed to that, I would point out the following:

(1) It appears to be evident from the work history of the appellant that throughout his working life, he went wherever work was available, all the time working in the mining industry, not mining exactly, but opening up mines.

(2) He had worked, essentially, for the same company, Canadian Mine Services for about 12 years doing that kind of thing. Canadian Mine Services had consistently made all the deductions necessary as if the appellant were working in Canada, even when he was working in Ireland.

(3) He had kept an interest in a house in Canada, although it is clear that he had visited it very little and, perhaps, not at all. To my understanding, he still owns a half of that house.

(4) He kept credit union bank accounts, one “transfer account” and one “long-term account”, and I use his own expression, and emphasize that point.

(5) The payments for the mortgage on his house were regularly deducted from his bank account in British Columbia.

(6) In Ireland, our information is that there was no income tax paid, neither asked for by the government nor any request or overture made by the appellant to pay any tax.

(7) The appellant was always working on a Canadian passport and, therefore, as a Canadian citizen.

(8) Every time his wife left him when she was in Ireland with him, she came back to Canada. While that’s not a great indication, his wife’s conduct in coming back to Canada is certainly not very great support for the appellant’s contention that the spatial bounds of their “lives” — in the plural — had been relocated to Ireland.

(9) He returned to Canada for all family funerals. While I will point out, respectfully, that that is laudable and understandable, nevertheless it is an indication of where his extended family interests remained, and that was in Canada.

(10) He was expecting, according to answers given to questions in cross- examination, to receive his old age pension at age 65, but left the country, according to his information to the Board, at age 53, with no intention of returning. It is possible he would have had some very great difficulties in asserting his rights to an old age pension under the Canadian law which then existed, and yet he anticipated no problem — even, as he says, in his new status as a resident of Ireland.

(11) Some of the furniture which he bought in Ireland was new, but I do point out that some of it was second-hand and used.

(12) All the time he was away, he drove a car using a Canadian automobile driver’s licence.

(13) Finally, some time about the end of 1978, he was notified that his job, and I will use the words “with TARA” in quotation marks, would be kept open for him for a period of three (3) months.

According to his information, he was also aware that he could become an Irish citizen at the beginning of 1979. I can reach only one conclusion, and the conclusion is quite simply that he abandoned, at that point, any thought he had of retaining his alleged status in Ireland and becoming an Irish citizen. He was in Canada at the time and he simply didn’t go back to Ireland. I do not accept as sufficient reason, or in fact as the only reason, that his decision to forsake Ireland and remain in Canada was because his father was ill. What were all his reasons is not for the Board to determine, but that one is not satisfactory.

As indicated by counsel for the respondent, I have no problems whatsoever with the year 1979, and I don’t believe it is asserted or should be asserted that he was anything other than a Canadian resident in that year.

Ultimately, therefore, we come down to one point — his own testimony is that during the period 1976, 1977 and 1978 up until about August, he was employed by a company, TARA, and not by Canadian Mine Services. The possibility — and I emphasize that word — is that he was employed in the years 1976, 1977 and 1978 by TARA, allegedly an Irish company, and not by Canadian Mine Services. According to the appellant’s testimony, TARA has purchased everything formerly owned by Canadian Mine Services under one of its contracts with TARA as of January 1, 1976.

I do not find it at all unusual that the appellant would have been offered a position with TARA and remained to assist TARA in getting the mine operative, but I am satisfied that he clearly continued in conjunction with an arrangement of some kind with Canadian Mine Services. Even if the appellant worked for an Irish company, TARA, during the period 1976, 1977 and 1978, and even if it could be shown to the Board that there was no relationship whatsoever between TARA and Canadian Mine Services (I hasten to point out that the physical evidence (Exhibit R-2) indicates that, indeed, there was a direct relationship between the appellant and Canadian Mine Services), that fact in itself and by itself would fall short of filling the criteria that I have just noted in Thomson v MNR and upon which, to my knowledge, all decisions on these matters are made.

Certainly, Mr Roy’s stays or series of stays in Ireland may have lasted longer than he had originally planned; the stays may have indeed been more enjoyable than he might have expected; and he might have liked to stay on for the higher pay and given that prospect serious consideration. But these elements did not release him either from the obligations or the privileges of a Canadian resident for income tax purposes during the years under appeal.

The appeal is dismissed.

Appeal dismissed.